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Who Can Bring a Florida Wrongful Death Act in Action?

Wrongful Death Act BenefitsMost of us remember civics class in elementary and junior high that introduced us to how our country was formed.  We all have learned about the three separate branches of government and understand that the laws of England were a huge influence on the initial laws of our country.  This historical law is referred to as “common law” which is a law that derives from court decisions.  At “common law”, once a person died their right to sue for personal injury also died with them and there was no right to bring a suit for a civil wrong once a person died.

History of the Wrongful Death Act Passed in Florida

By 1883, however, Florida’s legislature decided that the common law not permitting someone to sue for their own death was inequitable.  That year, Florida passed the first Florida Wrongful Death Act.  So, now, since the judicial branch doesn’t make new laws, the legislative branch in Florida felt the need to pass a specific law that allowed for a person to sue in the name of their deceased loved one.  This Florida Wrongful Death Act provided a statutory basis (as opposed to a common-law basis) on which to bring an action on behalf of a dead plaintiff.  This same Florida Wrongful Death Act has been passed forward and with some revisions but now is codified in Florida Statute Section 768.19.  This statute dictates how, when, and who can bring a Florida Wrongful Death case.

Section 768.19 provides that Florida’s Wrongful Death Act provides a cause of action for the survivors based upon an underlying tort committed against the decent that caused his/her death.  The event causing the death must have entitled the person injured to have maintained an action had they not passed away.  In a way, Florida’s Wrongful Death Act just extends the right to bring an action that causes the death of a plaintiff. This right is passed on to the decedent’s “survivors”.

Wrongful death claims arise out of many types of conduct. However, several common causes of wrongful death include:

  • Car accidents,
  • Pedestrian and bicycle accidents,
  • Unsafe working conditions,
  • Unsafe commercial and residential premises,
  • Medical malpractice,
  • Dangerous products,
  • Preventable child deaths including accidental drowning, and
  • Accidental poisoning.

Who Can Bring the Florida Wrongful Death Act Action?

So, the next question to answer in regard to Florida’s Wrongful Death cases is who can bring the Florida Wrongful Death action?  In Florida, only the personal representative of the decedent’s estate can be the action. A personal representative of an estate can be established only by the probate court for the county where the decedent lived.  In determining who the personal representative is, a probate court will first look at the decedent’s preference.  This preference would be properly set out in a last will and testament.  If the will is done properly it will nominate a personal representative as well as back up personal representatives should her first election not be qualified or eligible for some reason.  If there is a selection made in a properly executed will, then the probate court will usually give deference to that selection and will typically approve that personal representative of the decedent’s heirs.  If they cannot agree the preference goes to the relative who is closest in kin.  If more than one person is closest in kin, then the probate court will select the best qualified for the position of personal representative.

The only person who can legally hire a lawyer for a wrongful death case is the personal representative. Any heir that hires a lawyer for a wrongful death case who is not the personal representative, or the presumptive personal representative will not be permitted to bring the case.  That lawyer may represent your share of the damage claim, but the right of the Florida Wrongful Death action only allows the personal representative nominated by the probate court to hire the lawyer and bring the action.

Since most people who die as the result of negligence do not expect to pass away when they did, many die without a will. Hence the probate court must then select the best person for a Florida Wrongful Death case to serve as the personal representative. In the absence of a will, the preference for the personal representative goes to the surviving spouse.  In the absence of a surviving spouse, then the probate court will consider the order of preference would be the person selected by a majority of the persons who make up the estate.

What is the Difference Between the Estate and the Survivor Claims?

So, who are the “survivors” for a decedent and what is the difference between the estate’s claims and the survivor’s claims?

  • The ESTATE is basically all the business issues related to the decedent. For example, if the decedent dies with debt then the Estate will be forced to deal with the debtors with the assets that existed at the time of the death. Medical bills, funeral bills and other related expenses are almost always considered “estate” expenses and will be paid by the estate.  Likewise, if others owed money to the decedent then the estate will seek to have those monies collected.
  • SURVIVORS are children of the decedent, spouses of decedent and if no spouse then parents of the decedent. This sometimes becomes a complicated issue and, like many other Florida Wrongful Death issues, requires close attention by a board-certified civil trial lawyer. The claims of survivors are more personal relationship claims like loss of parental guidance, mental pain and suffering for the loss of that person, and/or loss of support or services. In Florida the one biggest components of these damages are the mental pain and suffering damages since those are the ones that a jury can give monetary damages for the loss of a father, mother, son, etc. These damages are not limited by anything other than the evidence of how good that relationship was and how it was expected to develop in the future. Another item of damage available to survivors are the “net accumulations” of the decedent.  Florida’s Wrongful Death Act defines net accumulation as net future earnings.  In determining “net earnings” the court must look at most likely future gross earnings and then take from those earnings any reasonably liabilities and expenses.  The remaining amount would be the net earnings or “net accumulations.”

Wrongful Death in a Medical Malpractice Claim

The Florida Wrongful Death law is a creature of the Florida legislature and since that its origin, it can be amended by that same body. Florida’s Wrongful Death Act was substantially amended in the late 1990s as a result of medical malpractice tort reform.  As a result, Florida’s Wrongful Death Act was amended in medical malpractice cases to not permit a medical malpractice survivor to collect for mental pain and suffering damages if the decedent dies without a surviving spouse or child under 26 years of age.  For example, Florida’s Wrongful Death Act provides that if an unmarried person dies without children then the heirs and the estate can only recovery for the bills and other monetary damages like net accumulations.  This makes nearly every potential medical malpractice case where there is no surviving spouse or child under 26 are not worth pursuit since these cases will have expenses between $100,000.00 and $250,000.00 just to get to Court.  This has basically made it next to impossible to bring a medical malpractice case for any person that dies without a spouse or children under 26 years of age.

Our wish is that you and your family are never tasked with having to consult with a lawyer about a Florida Wrongful Death case but if you or a loved one does find yourself in such a dreadful position you should seek advice from a Florida Board Certified Civil Trial Lawyer.  This will assure you and your loved ones that you are consulting someone with vast experience in this area of the law and whose reputation has been verified by other lawyers and judges who work in this area of the law.

For more information on Florida’s Wrongful Death Act, please feel free to contact our firm on the web at or call us at 855HIREjoe.

Joe Zarzaur is a Board Certified Civil Trial Attorney whose firm is dedicated to promoting community safety since 2007. ZARZAUR LAW’S AREAS OF PRACTICE: Serious Personal Injury, Product Defect, Auto Accidents, Cycling Accidents, Motor Vehicle Accidents, Products Liability, Wrongful Death, Community Safety, Boat and Jet Ski Accidents, Slip and Fall Injuries, and more. Licensed in Alabama and Florida.

If you’ve been the victim of an accident, it’s important that you don’t make any rash decisions. Put yourself in the best possible position to receive the justice you deserve. It is also important to consult with a Board Certified Trial lawyer who has the knowledge and experience to help you. We know accidents can be stressful and want to make the process as easy as possible for you. Call Zarzaur Law, P.A. today at (855) Hire-Joe for a free legal consultation or visit